Posted by Bruce Bourgoine who blogs at
Kennebec Blues and Dirigo Blue.

The constitutional device in many states granting the ability of plebiscite rule through ballot measures, citizen initiatives, propositions, or peoples’ vetoes ought to be prohibited from regulating rights guaranteed or granted by legislation or judicial decision by federal and state governments.

It is improper and immoral to subject the rights of any minority to a vote of an electorate likely comprised of a majority larger than affected minority.  Unlike state constitutions, the United States Constitution does not provide for rule by referenda and through the "Guarantee Clause" (Article IV, Section 4), guarantees each state a "republican form of government".  It defines and grants basic rights and liberties that have been further extended through legislation and clarified through judicial ruling.  

While the "Guarantee Clause" may not explicitly prohibit states’ referenda, applying such votes to determining the denial or reduction of basic rights that are Constitutionally granted though our "republican form of government" ought to be checked to give balance in the conflict of majority rule toward minority rights.

Imagine the outcomes of these hypothetical referenda:

- 1886; A referendum to allow free passage of Native American buffalo hunters throughout the Dakota Territory.

- 1920; A proposition to grant women suffrage in the United States.

- 1942; A ballot measure to safeguard Japanese American civil rights in California.

- 1964; A citizen initiative to end racial segregation in schools, public places, and employment in the United States.

- 2010; A people’s veto of a second piece of legislation granting civil marriage rights regardless of sexual orientation in Maine.

Putting taxation to a vote is one thing; placing individual rights in front of the electorate is entirely something else.  Tyranny of the majority is a too powerful and punitive force when it can take away the rights of any minority.  It is an extension of power that creates a classic check and balance Constitutional conflict.  It ought to be challenged to pursue prohibiting any referenda rule in favor of guaranteeing basic rights and liberties.

Originally posted to Bruce Bourgoine on Thu Nov 05, 2009 at 06:58 PM PST.


Prohibit referenda on rights and liberties by states

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